BJI v NRS

[2010] QDC 447

DISTRICT COURT OF QUEENSLAND

CITATION:

BJI v NRS [2010] QDC 447

PARTIES:

BJI
(appellant)

v

NRS
(respondent)

FILE NO/S:

BD 2631/10

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

5 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2010

JUDGE:

Irwin DCJ

ORDER:

1.   Appeal allowed;

2.   The orders are varied to the extent of imposing a sentence on each offence of two and a half years imprisonment suspended forthwith with an operational period of 37 months, to be served concurrently.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant pleaded guilty to one count each of fraud as an employee and fraudulently making a false entry in a record – where the appellant was dealt with summarily – where the appellant was sentenced on each offence to two and a half years’ imprisonment suspended after seven months for an operational period of 37 months,  to be served concurrently – where the sum involved was $44,657.45 – where the offences were committed in 2004 – where the appellant ceased employment and left Queensland before an arrest warrant was issued – where the appellant was 22 years old at the time of his offending –  where he had prior convictions for petty dishonesty in Queensland –  where the appellant had subsequently committed minor offences in another state which demonstrated a willingness to deceive – where the appellant established a successful business in another state –where the appellant voluntarily surrendered to the jurisdiction in 2009 after having made full restitution and in addition fully indemnifying the complainant of associated accounting and interest costs – where from 2007 the appellant had voluntarily co-operated with police authorities in another state as an informant – where his co-operation was described as substantial – where the appellant’s incarceration would result in hardship to his family – where there was evidence that the appellant suffered from a psychiatric illness surrounding the period of offending – where the magistrate did not make express reference to any reduction in sentence to reflect the appellant’s co-operation as an informant – whether the magistrate failed to take into account a material consideration in exercising his sentencing discretion – whether in all the circumstances the sentence was manifestly excessive

Criminal Code 1899 (Qld), s 408C(1)(a), s 408C(2)(b), s 441(a) (renumbered as s 430(a)), s 552B(3), s 552C(2), s 552H(1)(a)

Justices Act 1886 (Qld), s 222(2)(c), s 223(1), s 223(2), s 225(1), s 225(3)

Allesch v Maunz (2000) 203 CLR 172, cited
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, applied
Gallagher v R (1986) 160 CLR 392, applied
House v The King (1936) 55 CLR 499, applied
Langdale v Danby [1982] 3 All ER 129; [1982] 1 WLR 1123, applied
Mickelberg v The Queen (1984) 13 A Crim R 365, considered
Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250, cited
R v Alexander [2004] QCA 11, considered
R v Allen [2005] QCA 73, considered
R v Bartorillo & Bartorillo, unreported, Queensland Court of Appeal, No 161 and 163 of 1996, 11 October 1996
R v Bell [1982] Qd R 216, considered
R v Blackhall-Cain;ex parte A-G (Qld) [2000] QCA 380, distinguished
R v Chong; ex parte A-G (Qld) (2008) 181 A Crim R 200; [2008] QCA 22, considered
R v Clarke [2009] QCA 361, cited
R v Cuff; ex parte A-G (Qld) [2001] QCA 351, cited
R v D & Attorney-General of Queensland [1995] QCA 332, considered
R v D’Arrigio; ex parte Attorney-General (Qld) (2004) MVR 54, cited
R v Elliott [2000] QCA 267, cited
R v Fisher [2002] QCA 259, considered
R v Gladowski (2000) 115 A Crim R 446, considered
R v Grehan (2010) QCA 42, considered
R v Haughland [2009] QCA 46, considered
R v Hayes [2010] QCA 96, considered
R v Hearnden [2002] QCA 258, considered
R v Jeffree [2010] QCA 47, considered
R v La Rosa; ex parte A-G (Qld) [2006] QCA 19, considered
R v Law [1996] 2 Qd R 63; (1996) 84 A Crim R 142, considered
R v Lawrie [2008] QCA 97, considered
R v Lee (1996) 2 Qd R 516; (1995) 83 A Crim R 428, considered
R v Mara; ex parte A-G (Qld) [1999] QCA 308, cited
R v Neumann; ex parte A-G (Qld) [2005] QCA 362, cited
R v Rees [2002] QCA 469, considered
R v Riesenwebber; ex parte Attorney-General [1996] QCA 11, cited
R v Robinson; ex parte A-G (Qld) [2004] QCA 169, considered
R v SBI [2009] QCA 73, applied
R v Sheehan [2007] QCA 409, considered
R v Shore (1992) 66 A Crim R 37, considered
R v Thompson (1987) 37 A Crim R 95, cited
R v Thompson (2006) 157 A Crim R 385, considered
R v Tilley (1991) 53 A Crim R 1, considered
R v Todd [1982] 2 NSWLR 517, cited
R v Tran; ex parte A-G (Qld) (2002) 128 A Crim R 1, applied
R v Tsiaris [1996] 1 VR 398, cited
R v Verdins (2007) 16 VR 296, cited
R v Vinson [2002] QCA 379, cited
R v Webber (2000) 114 A Crim R 381; [2000] QCA 316,
applied
R v Whyte [2004] VSCA 5, considered
R v X [2001] QCA 498, considered
Salameh v R (1991) 55 A Crim R 384, considered
Teelow v Commissioner of Police [2004] QCA 84, applied
Warry v PB Pty Ltd [1999] QCA 154, applied
York v R [2005] HCA 60, considered

COUNSEL:

A M Hoare for the appellant

G P Cash for the respondent

SOLICITORS:

North Law for the appellant

Director of Public Prosecutions (Queensland) for the respondent

1. On 11 September 2009 the appellant was convicted on his own plea of guilty of one count of dishonestly applying to his own use a bank credit belonging to his employer, PoolWerx Corporation Pty Ltd (“PoolWerx”), between 11 February 2004 and 4 August 2004.[1]  The sum involved was $44,657.45.  He also pleaded guilty to one count of making a false entry in an internet banking funds transfer website with intent to defraud, between the same dates.[2]  The maximum penalty for each of these offences at the time he committed them was 10 years imprisonment.[3]  However, because the offences were dealt with summarily by the Magistrates Court the maximum penalty to which he was liable in each case was 100 penalty units or 3 years imprisonment.[4]

   [1]Criminal Code 1899 (Qld) s 408C(1)(a) and (2)(b) (fraud as an employee).

   [2]Ibid, s 441(a) (fraudulently making a false entry in a record). This section has been renumbered as s 430(a) by Act No 55 of 2008, s 80.

   [3]The maximum penalty for an offence to which s 408C(2)(b) applies has since been increased to 12 years by Act No 55 of 2008, s 71(1).

   [4]Criminal Code 1899 (Qld) s 552B(3), s 552C(2) and s 552H(1)(a). On 22 July 2009 a plea of guilty was indicated and a magistrate determined that the offences were of such a nature that the appellant may be adequately punished on summary conviction. See also [12] of this judgment.

1. The appellant was sentenced by an acting magistrate (“the magistrate”) on each offence to two and a half years imprisonment, suspended after seven months with an operational period of 37 months.  A conviction was recorded in each case and the sentences were ordered to be served concurrently.  On 16 September 2009 he was admitted to bail pending the outcome of this appeal.

1. The appeal is brought on the ground that the sentence is manifestly excessive.[5]  It is submitted the sentence imposed failed to give due weight to the circumstances of mitigation, the cumulative effect of which demonstrates that this case possesses extraordinary features making it appropriate the appellant not serve any time in actual custody.  Particular stress is placed on the appellant’s payment of full restitution and his co-operation with authorities as an informant.

   [5]Justices Act 1866 (Qld), s 222(2)(c). A second ground of appeal was abandoned on the first day of the hearing.

The circumstances of the offences

1. The complainant was a company that operated a pool service franchise.  The appellant was employed by the company as an accounts officer from 15 September 2003 until 7 August 2004.  His duties included “account data entry, reconciliation of accounts, remit payments to creditors, corporate credit cards, petty cash and other expenses, reconciliation of company bank accounts and reconciliation of general ledger accounts on balance sheet”.[6]  He was the only employee other than the accounts manager who had access to the passwords necessary to conduct computer transfers of company funds.

   [6]Transcript of the sentencing proceedings, T1-3 ll 34-38.

1. When he commenced employment, the appellant gave the bank account details of his then girlfriend in order to have his wages paid into that account.  During his employment he also provided his own bank account details for this purpose.

1. Between 11 February 2004 and 4 August 2004 he transferred company funds into his girlfriend’s account on 22 occasions; and in order to avoid detection on 17 occasions he falsified records to indicate that the transaction was a legitimate payment to a creditor.  The funds transferred into his girlfriend’s account totalled $43,639.75.  Another $1,070.70 in fraudulent transactions was conducted with the use of the company president’s credit card.  According to the prosecutor $44,657.45 was the subject of the count of fraud as an employee.[7]  The falsifications of the internet banking funds transfer website formed the basis of the other count.

   [7]Ibid, T 1-4, ll 6-52.  It is appreciated that an addition of the individual sums referred to totals $44,710.45.  However, I proceed on the basis of the figures mentioned by the prosecutor.

1. On 19 July 2004 the appellant tendered his resignation commencing from 7 August 2004.  He ceased employment with the company on this date.

1. On 26 September 2005[8] a production notice was issued by the Brisbane Magistrates Court which enabled police to obtain bank records and trace the amount of money obtained by the appellant and the dates on which this occurred.

   [8]Although at T1-4 l l57 of the sentencing proceedings reference is made to 26 September 2006, in context I agree with the respondent that this must be a reference to 26 September 2005.

1. After inquiries were made of the appellant’s family in Queensland, he telephoned police in October 2005 and advised that he was in Tasmania.  He said he was backpacking around Australia and had no fixed address.  He said he would return to Queensland to deal with the fraud matters before the end of February 2006.  Having received no further contact from the appellant, police again contacted his family in July 2006.  Subsequently in the same month the appellant phoned the police.  He advised he was working in Sydney but would return to deal with the fraud matters.  Although refusing to provide his home address or employment details, the appellant provided his mobile telephone number.  It was agreed he would return to Queensland before 31 August 2006, after which time police would actively seek him out.

1. An arrest warrant was issued on 29 September 2006.  By this time it was believed he had no intention of returning voluntarily to Queensland to deal with the matters.  The warrant would enable him to be taken into custody for the purpose of extradition to Queensland if located interstate.

1. On 22 July 2009 the appellant voluntarily surrendered himself at the Indooroopilly CIB in the presence of his lawyer.  He participated in an interview on that day and made admissions to transferring the funds during his period of employment. 

1. On that date he was arrested, charged and appeared before the Brisbane Magistrates Court.  The plea of guilty was indicated.  The Bench Charge Sheet, which forms part of the file transferred to this court for the purpose of the appeal, is endorsed to the effect that the magistrate before whom he appeared determined the offences may be adequately dealt with in the Magistrates Court.  The matter was adjourned for a “lengthy plea” on 20 September 2009 and the appellant was released on bail.

The appellant’s circumstances

1. The appellant was born on 15 February 1982.[9]  Therefore, he commenced committing these offences a matter of days before his 22^nd birthday and continued doing so for approximately another six months.

   [9]Queensland Court Outcomes report for the appellant which is part of the Magistrates Court file made available to me for the purpose of this appeal.  This document was admitted as an exhibit on the sentencing proceedings and was admitted by his counsel (T1-6 ll 39-49).

1. The appellant had a criminal history.  He had been convicted before the Brisbane District Court on 27 November 2002 of one count of entering a dwelling and committing an indictable offence (on 21 April 2002), three counts of fraud – dishonestly obtaining property from another (on 21 April 2002 and 22 April 2002) and attempting to dishonestly obtain property from another (on 22 April 2002).  No conviction was recorded and he was admitted to probation for 12 months with a special condition that he pay $30 compensation within 24 hours.  According to the transcript of those proceedings his co-accused was the girlfriend into whose account the company funds were transferred in the present case.[10]  Newton DCJ said in imposing sentence:

“You have both got qualifications, and there is absolutely no place for this petty dishonesty.  It causes people a good deal of inconvenience to have their credit card stolen and unlawfully used.” (my emphasis)

It is noted that the present offending commenced approximately 2 ½ months after the expiration of the probation order.

[10]The Transcript of Proceedings also forms part of the Magistrates Court file and the Magistrate was aware of it.  See also [17] of this judgment.

1. He had subsequently been convicted before the Melbourne Magistrates Court on 24 July 2007 of one count each of using an unregistered motor vehicle on a highway, using a hand held phone whilst driving and recklessly dealing with the proceeds of crime.  No conviction was recorded, and he was fined $500, $165 and $700 respectively.  A forfeiture order was made by consent.  It was ordered that registration plates be destroyed.[11]

   [11]Victorian Court Outcomes report for the appellant which is part of the Magistrates Court file.  This document was admitted as an exhibit on the sentencing proceedings (T1-6 ll 39-49).

1. At the sentencing proceedings the appellant’s counsel[12] explained that the Queensland offences involved the use of a credit card to purchase petrol for $30 when the appellant was 20 years of age.  His counsel said that the appellant’s de facto wife was pregnant and he was struggling.[13]  He said that despite the entry on the Queensland Court Outcomes report he did not enter a dwelling house, but instead entered a service station carrying a card which he knew was not his.  It was said that it was only the one occasion where he paid for petrol; and the appellant’s recollection was that the matter was dealt with in the Magistrates Court.[14]

   [12]This was not Mr Hoare of counsel who represented the appellant at the appeal.

   [13]This is a reference to the person who has also been referred to as his girlfriend.

   [14]Transcript of sentencing proceedings s T1-11-l 53 to T1-12 l 35.

1. Before imposing sentence the magistrate appears to have obtained the Verdict and Judgment Record, attaching the sentencing remarks of Newton DCJ from the District Court.  These were provided to the appellant’s counsel with an opportunity to be further heard on this issue.  The appellant’s counsel declined this invitation, saying:

“I apologise if I’ve mislead the Court about that.  He has effectively not a great deal of recollection about them … he doesn’t really remember much about it.”

He also did not contest the magistrate’s proposition that the appellant’s co-accused was his girlfriend at the time of the offending for which the appellant was being sentenced.[15]

[15]Ibid, T 1-32 ll 20-40.  During the appeal Mr Hoare also accepted that the same woman was involved on each occasion (T1-35 ll 42-47).

1. The appellant’s counsel explained that the Victorian offences related to a registration plate attached to his vehicle.  He said the appellant was transferring his registration from Queensland to Victoria.  The appellant had a permit to drive in Victoria during this period.  Because he was being pulled over every day he foolishly attached a registration plate given to him by a friend to the vehicle to avoid this.[16]

   [16]Ibid, T 1-11 ll 34-51.

1. Mr Hoare enlarged on these facts during the appeal.  He said that the vehicle was being stopped by police because it did not have plates on it.  Further, the registration plate he attached turned out to be stolen.[17]

   [17]Transcript of appeal proceedings, T1-36 ll 19-30.

1. Mr Hoare submitted that the 2002 Queensland offences were of a minor nature and the 2007 Victorian offences were profoundly stupid and reckless rather than dishonest.[18]

   [18]Ibid, T1-35 ll 52-54; T1-36 ll 55-56.

1. The appellant had been diagnosed with ADHD at 12 years of age.  For this reason he attended a paediatric practice on four occasions from 14 ½ years to 16 ½ years of age.  His presenting symptoms were hyperactivity, impulsivity, inattention and some behavioural co-morbidity.  These symptoms improved with the use of psychostimulant medication which initially consisted of Ritalin and was later changed to Dexamphetamine.  At the time of his last appointment, there did not appear to be any significant behaviour problems.  He did not attend for another scheduled appointment.[19]

   [19]Report of Malcolm N Miller, paediatrician, 3 September 2009 which was handed to the magistrate during the sentencing proceedings and made part of the court file.  See T 1-17 l 15 to T1-18 l 13 (see T1-18 ll 11-12 for Mr Miller’s report) of sentencing proceedings.

1. After his parents separated and divorced when he was 16 years of age there was no suggestion that he should continue to see any doctor.  He ceased taking Dexamphetamine when he was 18 years.[20]  Mr Miller opined:[21]

“Approximately two-thirds of children and adolescence (sic) with ADHD will continue to carry their symptomatology into adult life.  I am unable to comment as to whether the above person continued to be impulsive but there was certainly no evidence of any underlying associated severe behavioural disorder, he is not intellectually impaired.  Therefore in my opinion he should be responsible for his own choice of behaviours.”

[20]Transcript of sentencing proceedings, T1-15 ll 18-30.

[21]Report of Malcolm M Miller, paediatrician, 3 September 2009.

1. After completing year 12 in 1999 he immediately commenced work for 18 months with the Queensland Government where he completed a traineeship.  He then worked as an accounts clerk at a freight forwarding company, before commencing work with the complainant company, PoolWerx.  In between these periods of employment he worked at odd jobs for short periods.  When his de facto wife learnt of the offending she left him.  At this time their son was aged 2 years.  He then left Queensland and travelled until he became involved in sales, finance and marketing, and ultimately in the mortgage broking industry.  In 2007 he started a company.  After selling his shares in this company he started Money Secure (CW Financial Group) in August 2008.  This business was very successful and at one time employed 28 people.  He had recently transferred his directorship, knowing that a conviction would disqualify him from being a company director for at least five years.  Following this he no longer worked as a broker but gave property advice and introduced people to mortgage brokers.[22]  According to Mr Hoare during the appeal, he receives gross income under six figures, which is modest relative to what he was previously earning.[23]

   [22]Transcript of sentencing proceedings, T1-15, ll 31 to T1-17 l 5; Outline of Submissions and the report of Mr Cummins, psychologist, 7 September 2009 which were handed to the magistrate and also form part of the court file.

   [23]Transcript of appeal proceedings, T-20 l 15 to T-21 l 7.

1. Further light was cast on the appellant’s business activities in Melbourne through character references by his solicitor, Mr Bunnett and his business partner in the CW Financial Group, Mr Galanos.  Both gave written references which were handed to the magistrate.

1. Mr Bunnett described him as having “worked for several companies specialising in the sale of real estate to interstate investors and approximately one year ago established his own business in Melbourne”.[24]  He goes on to say:

“Because of his dedication and hard work the business has grown substantially to the extent that it has now has a number of employees and a significant turn over.

Ben has been extremely pro active in promoting and expanding his business and I have always found him to be an honest and efficient person of good character.  On many occasions he has expressed to me his regret at having been involved in the misappropriation of money and is fearful of the consequences.”

[24]This reference is dated 9 September 2010.

1. Mr Galanos who describes himself as the National manager of the CW financial Group said that he had been the appellant’s manager and business partner for 6 years.  He described the appellant as extremely professional and ethical and an integral part of the business which employed approximately 20 staff members.[25]  He was stunned at the appellant’s behaviour when he became aware of it as it was “totally out of character.”

   [25]This reference is also dated 9 September 2001.  He testified before the magistrate that the business currently employed 28 staff members (T1-25 ll 10-11).  His reference to being the appellant’s manager related to their working in a previous company where they met (T1-24 ll 10-14).

1. In his evidence before the magistrate[26] Mr Galanos confirmed that the appellant stepped down as a director because of this issue about 3 months previously.  They were both shareholders.  As far as he was aware the appellant’s brother was the sole director.  The appellant had managed all facets of the business, including managing staff, dealing with clients and with service and product providers.  He described him as having been in a position of trust by directly controlling the financials of the business.  His evidence was that he would not have left his previous position to become the appellant’s business partner if the appellant did not hold a high level of integrity; and the appellant had an impeccable reputation with the business’s employees, clients, business partners, service and product providers and the community.  He described the appellant as extremely remorseful. 

   [26]Transcript of sentencing proceedings, T 1-24 l to T1-26 l 30.

1. During oral argument on the appeal Mr Hoare advised that following the appellant ceasing his directorship a phoenix company was developed by those who were running the business.  As he put it “there seems to have been a coup in place” so that under the new corporate structure he had no interest in the capital or income of the company.[27]  In addition to being disqualified as a company director he was effectively excluded from working as a financial adviser except in a limited fashion.[28]

   [27]Transcript of appeal proceedings, T 1-15 ll 1-31.  Mr Hoare understood that Mr Galanos was not involved in this.

   [28]Ibid, T 1-14 ll 28-30.

1. According to Mr Cummins, a psychologist who provided a report in relation to the appellant and which was part of the evidence before the magistrate, the appellant’s offending was situationally motivated and at that time he was experiencing symptoms of an acute Adjustment Disorder with Mixed Disturbance of Emotions and Conduct (DSM IV – TR, code 309.4) which was precipitated as a result of him learning his girlfriend was pursuing her boss.[29]  In Mr Cummins’ opinion this disorder would have compromised his perception, thinking and consequential reasoning.  Further, in his opinion the appellant offended at a time when he was still immature and learning about the turbulence which can occur in intimate relationships.[30]

   [29]As indicated at this report was handed to the magistrate and forms part of the court file.  See pp 4 and the opinion and conclusions on p 5.

   [30]Ibid, p 5.

1. The reference to the appellant learning that his girlfriend was pursuing her boss and the explanation given to the magistrate for his offending appears in the following quote from the appellant, set out in Mr Cummins’ report as follows:[31]

“Well they were changing the accounting system at PoolWerx and I found all the account numbers didn’t line up and at that stage I was just feeling overwhelmed about the possibility of losing [his girlfriend].  [She] was threatening to have an affair with her boss and she was showing me letters from him.  She said he was spending money on her.At that time we had a lot of debts and I was so upset and so stressed about all of this.  I was getting counselling from one of the managers at PoolWerx.  Because of the financial difficulties then, I’ve still got a poor credit rating until about 2012 and even though all debts have been repaid.  With most of the money I took from PoolWerx I put it into [my girlfriend’s] bank account.  I was hoping this would impress her and would cause her to stop making these comments about wanting to have an affair with her boss and then as soon as she found out that I’d been accused of stealing money she left me.  Some of the money I took was spent on paying off debts.  Well I just felt overwhelmed by this situation and then I cleared out of Queensland and then I got a phone call from police and they said that when I was next in Queensland they wanted to interview me and it was just recently and with the help of my solicitor that I handed myself into the police.” (my emphasis).

[31]Ibid, p 4.

1. In his evidence before the magistrate[32] Mr Cummins described an Adjustment Disorder as an imbalance of thoughts, behaviour and feelings which is triggered by a specific event, and testified that a grief reaction is a specific example of it.[33]  His opinion was that although a grief reaction to his relationship falling apart was a component, the appellant’s Adjustment Disorder went beyond this.[34]  He described the appellant’s conduct as aberrant behaviour, not only associated with the offending but also with leaving the state “when he should have remained to face the music.”[35]

   [32]Transcript of sentencing proceedings, T1-19 l 1 to T1-23 l 40.

   [33]Ibid, T 1-20 ll 37-40.

   [34]Ibid, T 1-20 ll 41-44.

   [35]Ibid, T 1-20 ll 47-51.

1. In Mr Cummins’ opinion he presently had no such disorder or perhaps he had a residual disorder triggered by specific circumstances.  For example the appellant was “fairly agitated”, probably largely if not entirely related to his current legal situation.  Further the appellant may have an underlying mood disorder.[36]

   [36]Ibid, T 1-21 ll 10-22.

1. Mr Cummins evidence about the appellant’s prospects of rehabilitation was:[37]

“On the basis of my assessment of him, I would not expect him to re-offend.  In my opinion, he is genuinely remorseful, and genuinely ashamed regarding his offending.  And in fact, it is my view his shame and embarrassment contributed very significantly to his decision to leave the State, when he clearly shouldn’t have done so.”

[37]Ibid, T 1-22 ll 1-8.

1. In his report Mr Cummins had also expressed the opinion that he would not expect the appellant to re-offend.  However, he also reported that the appellant had no prior convictions.[38]

   [38]Mr Cummins’ report at pp 4 and 5.

1. In the course of cross-examination and the magistrate’s questions Mr Cummins said that the appellant volunteered information about the 2002 Queensland convictions.  He said that although the appellant did not provide the information about the 2007 Victorian convictions at the first consultation, he subsequently provided this information.  Mr Cummins took responsibility for the appellant’s original non disclosure because he had made it clear to the appellant that there was a difference in Victoria between having a prior conviction and having a prior court matter.[39]  Further, as the magistrate said during his sentencing remarks, “Mr Cummins did not upon learning of those matters resile from his assessment.”[40]

   [39]Transcript of sentencing proceedings, T1-22 l 18 to T 1-23 l 26.

   [40]Transcript of sentencing remarks, T 1-5 ll 41-43.

1. At the hearing of the appeal two reports were tendered from Dr Loyal who has been the appellant’s treating psychiatrist since 25 March 2010.[41]  Dr Loyal diagnosed the appellant as presently suffering from a Major Depressive Episode of mild to moderate severity.[42]  He had seen the appellant twice at the time of making this diagnosis.  Having continued to see him to provide weekly supportive psychotherapy between 6 April and 15 June 2010, he retrospectively diagnosed the appellant as being depressed due to a number of factors surrounding the period of this offending.[43]  Mr Hoare conceded that Dr Loyal doesn’t necessarily accept Mr Cummins’ final opinion and that I am entitled to give preference to Dr Loyal’s diagnosis of the nature of the appellant’s mental state at the time of his offending.[44]  I proceed to do so.  Dr Loyal was under no illusions about the appellant’s criminal history.[45]

   [41]These reports were dated 6 April 2010 and 15 June 2010 and were read and filed by leave.  This course was not opposed by Mr Cash of counsel for the respondent.  Dr Loyal was not required for cross-examination.

   [42]Dr Loyal’s 6 April 2010 report, p 2.

   [43]Dr Loyal’s 15 June 2010 report, p 1.

   [44]Transcript of appeal proceedings T1-16 l 18 to T1-17 l 41.

   [45]Transcript of appeal proceedings, T1-17 l 43-50.

1. Dr Loyal identifies the factors causing the appellant’s depression at the time of offending as follows:[46]

“He had significant difficulties within his family, especially in relation to his father.  Furthermore, he was in a difficult relationship where his partner at the time had become pregnant to his older child (sic).  There are also significant pressures where Ben felt that the partner would leave him unless he could be more financially secure.  Ben is significantly remorseful of this event.  He has explored the reasons why and what constituted the lead up to the offence.  There seems to be a number of circumstantial issues and pressures with which he recognises he did not deal with in a safe, ethical or legal manner.”

Mr Hoare argued that this is relevant to explain how the appellant came to commit the offences.[47]

[46]Dr Loyal’s 15 June 2010 report, p 2.

[47]Transcript of appeal proceedings, T1-19 ll 8-10.

1. Dr Loyal’s opinion of 6 April 2010 that the appellant was suffering from a Major Depressive Episode, was formed in the context of a number of stressful issues for the appellant, which he described as follows:[48]

“He is running a business which is very stressful on himself.  Furthermore there is the pending court case which is a significant stressor.  He also has a young two year old daughter who had a congenital abnormality, she still suffers from this physical abnormality and the psychological sequelae.  There have also been significant issues within his relationship which he and his wife are trying to work out.”

[48]Dr Loyal’s 6 April 2010 report, p 1.

1. In that report Dr Loyal referred to the previous diagnosis of ADHD, but concluded there was no clear evidence for this diagnosis currently.[49]

   [49]Ibid, p 2.

1. He also opined the appellant has an Opiate dependency currently in remission.[50]  Further, the appellant has a Narcissistic Personality Disorder with possible anti-social traits.  There is also evidence of at least conduct disorder traits while growing up; and other destructive impulsive behaviours such as gambling.[51]

   [50]Ibid, where he observes this has usually occurred in periods of emotional stress and difficulty and he had been drug free for a number of months at the time of the report.

   [51]Ibid.

1. Dr Loyal considered that at 15 June 2010 the appellant was improving in his mood.  However, he required ongoing therapy to help deal with other deep emotional issues stemming from his childhood.[52]  In conclusion Dr Loyal states:

“I think there are good prognostic indicators in terms of his overall outcome.  His relationship has improved and he has developed a more open, trusting and more secure bond with his wife, through relationship counselling.  Ben is more open to continuing therapy post the hearing in June.  I would recommend ongoing psychiatric support and intervention for Ben.”

[52]Dr Loyal’s 15 June 2010 report, p 2.

1. At the time of the sentence and appeal the appellant had been married for approximately two years to a Ukrainian National who does not hold Australian citizenship or permanent residency.  He is her Immigration (Assurance of Support) Sponsor and that of her family as well.  The conditions of her visa restrict her access to social security and health benefits.  As a result she relies on his income.[53]

   [53]Transcript of sentencing proceedings, T1-13 ll 50-56; Outline of Submissions and letter of Aleona Invelito, 9 September 2009 which was handed to the magistrate and forms part of the court file; letter of Aleona Invelito 6 April 2010 which was read and filed by leave at the hearing of the appeal.  (Again, this was without opposition and she was not required for cross-examination).

1. The appellant and his wife have a daughter who was 15 months at the time of the sentence and would have been about two years of age at the time of the appeal.  The daughter has a health condition which was described to the magistrate as a congenital defect in which her large intestine was herniated outside her stomach.  The surgeries required to correct this defect have caused the appellant and his wife to spend months living at a hospital facility for parents enduring such issues.[54]  This condition had subsequently worsened, requiring regular hospital visits and further surgery.[55]  A report from Dr Chit-Jellinek was admitted as evidence at the appeal.[56]  It certifies that the child has suffered from gastroschisis congenital abnormalities since birth.  This is a chronic gastro intestinal disorder and needs ongoing care with her eating pattern and bowel motion.  According to this report she needs constant care from both parents. 

   [54]Transcript of sentencing proceedings, T1-13 l 56 to 1-14 l 5; Outline of Submissions.

   [55]Letter of Aleona Invelito 6 April 2010.

   [56]Report of Dr Yu Yu Chit-Jellinek, St Kilda Superclinic, 1 April 2010 which was read and filed by leave without opposition and without the need for cross-examination.

1. A letter from the appellant’s wife which was in evidence before the magistrate referred to the child’s strong bond with him.[57]

   [57]Letter of Aleona Invelito 9 September 2009.  This was confirmed at the appeal by her 6 April 2010 letter.

1. That letter also expressed her concern that without the appellant’s support her visa may be jeopardised; and she stated that the stress of the pending court proceedings had put a significant strain on their relationship, resulting in the need for family counselling.

1. In her letter which was evidence on the appeal she described herself as a part-time student and primary carer of their child.  As a result the appellant is the main income earner.  Having frequent hospital visits and studying does not allow for a sufficiently paid job to support herself and the child, keep up house repayments and regular living expenses.  She stated that if she stopped studying she could not afford childcare, and it is unlikely the child could cope with full time child care.[58]

   [58]Letter of Aleona Invelito 6 April 2010.

Proceedings before the magistrate

Prosecution submissions[59]

[59]Transcript of sentencing proceedings, T1-6 l 50 to T1-9 l 20; T1-26 l 43 to T1-31 l 10; Outline of Submissions.

1. The prosecutor submitted that the magistrate should impose a sentence of two and a half years imprisonment, to serve nine months.  He supported this submission by reference to R v Haughland,[60] R v La Rosa; ex parte A-G (Qld),[61] R v Robinson; ex parte A-G (Qld)[62] and R v Vinson.[63]

   [60][2009] QCA 46.

   [61][2006] QCA 19.

   [62][2004] QCA 169.

   [63][2002] QCA 379.

1. Submissions on behalf of the appellant[64]

   [64]Transcript of sentencing proceedings, T1-9 l 27 to T1-18 l 13.

1. It was conceded that the appellant had committed very serious offences involving a significant sum of money and breach of trust.  It was further conceded that a person charged with such offences will only avoid a sentence which involves immediate incarceration in exceptional circumstances.  However, it was submitted that the appellant’s case involved “most exceptional circumstances” such that a wholly suspended sentence of imprisonment (if necessary combined with monetary or other penalties) was the most appropriate order.

1. It was said that the appellant apologised to the community and the victim company, and his remorse was evidenced by the restitution of a significant amount in excess of the moneys stolen on account of interest and accounting, legal and recovery fees.

1. The factors relied on as significant features making his case exceptional were:

·     The appellant’s repayment of total restitution to the victim company in excess of the amount charged.

·     The offences occurred 5½ years earlier when he was 22 years of age.

·     He travelled from Melbourne to Brisbane of his own free will to surrender himself into custody.  He then made full admissions in a record of interview.

·     He had provided and continued to provide assistance to the Victorian Police in relation to a suspended police officer who was facing trial over drug trafficking and sexual assault matters.  This included giving evidence at committal and trial.

·     He suffered at the time of his offending with Attention Deficit Hyper-activity Disorder and an Adjustment Disorder which compromised his decision making ability.[65]

[65]This was relied on as an explanation and not an excuse for his conduct.

·     He had lived a blameless life since his offending and has been rehabilitated to the extent that he is now a proprietor of a very successful business.

·     His wife is a Ukrainian national who does not hold Australian citizenship or permanent residency.  He is the immigration sponsor of her and her family.  She is not eligible for social security or health benefits and relies on his income.[66]

·     They have a young daughter who was born with a congenital defect.

·     The surgeries required by this defect have caused him and his wife to spend months living at a hospital family facility.

[66]As I have stated at [42] of this judgment the conditions of her visa restrict access to these benefits.  This was said with reference to his wife’s 6 April 2010 letter which became evidence at the appeal.

1. Other factors relied on in mitigation were:

·     His guilty plea.

·     His excellent prospects of rehabilitation.

·     Excellent character references.[67]

·     Mr Cummins’ report and evidence.

·     He was a good citizen who gives back to the community through significant charitable donations.

[67]I have previously referred to the character references by Messrs Bennett and Galanos.  A reference was also provided by Mr Wong, JP, the manager of a finance business.  He had met him through the business 12 months earlier, and had found him to be trustworthy.  He made particular reference to his “honesty and business integrity”.

1. Reliance was also placed on the unsophisticated nature of the offending for which it was asserted he was bound to get caught eventually.

1. In these circumstances it was submitted that in the special circumstances of the case, the principles of specific and general deterrence would be met by a wholly suspended sentence.  It was argued that the five and a half years the appellant had lived with the matter hanging over his head and the break down of the relationship with his previous girlfriend after she discovered his offending provided the necessary specific deterrence.

1. The appellant’s counsel supported these submissions by reference to Haughland, R v Blackhall-Cain; ex parte A-G (Qld)[68] and R v Mara; ex parte A-G (Qld).[69]Particular emphasis was put on the observation of the Court of Appeal in Haughland where the applicant had pleaded guilty to an offence of stealing as a servant and an offence of fraud in excess of $5,000, involving the theft of phones with a total value of $12,707 and the use of those phones to the extent of $13,404.25 in charges, that:[70]

“It was submitted that it was open to the sentencing judge in the proper exercise of his discretion to impose a wholly suspended sentence.  In my view, that proposition is correct and it was not disputed by counsel for the respondent.”

[68][2000] QCA 380.

[69][1999] QCA 308.

[70][2009] QCA 46 per Muir JA (with whom Keane JA and Daubney J agreed) at [14]. Although the Court dismissed the appeal against four months’ imprisonment and two years’ probation for the stealing offences and two years’ imprisonment suspended after four months for the fraud offence.

1. In support of the submission that the appellant had repaid total restitution in excess of the amount which is the subject of the charge, reliance was placed on a letter from Mr Bunnett dated 20 July 2009 which annexed his correspondence with the victim company.[71]

   [71]This correspondence was also handed to the magistrate during the sentencing proceedings and made part of the court file.

1. The first of the letters which is dated 20 July 2007 from Mr Mercer who was described as Chief Corporate Officer of PoolWerx, calculated the total loss/costs due to the misappropriation, including external accountant costs as $67,827.81.[72]  Notional interest at 8 per cent over 3 years was calculated at $13,878.67.  This was a total of $81,706.48 which was then reduced by payments of $12,000 to a reimbursable amount of $69,706.48.  The first repayment was $10,000 on 22 June 2004.  This was during the period when the offence of dishonestly applying a bank credit belonging to PoolWerx was alleged to have occurred.  The other payments of $1,000 each were made on 29 May 2007 and 15 July 2007.  This letter concluded:

“As you can see from the above amounts a repayment of $1,000 pm will take several years to reduce this debt.  In the interim PoolWerx would be prepared to accept $2,000 pm as a repayment arrangement, and would be please [sic] to receive Mr Invelito’s revised offer to speed up the repayment process.”

[72]It is noted that the amount alleged to have been misappropriated exceeds the amount of the charge.  It is the amount of the charge on which the sentence was passed and this appeal proceeds.

1. Therefore, as the appellant’s counsel advised the magistrate:[73]

   [73]Transcript of sentencing proceedings, T1-10 l 12-16.  I take the reference to the “informant” in this submission to be to the respondent police officer because at l 36-40, counsel expressed the view that he would have thought the “informant” would be communicating with the victim.

“Now the learned prosecutor talks about the time it’s taken to get here.  Mr Invelito took advice about this matter years ago and he was advised to pay off as much of the money as he could before it was dealt with.  Certainly, I had many conversations with the informant in this matter.  He wasn’t pushing the matter.”

As counsel also put it:[74]

“What he was doing is effectively buying time so he could pay back the money.”

[74]Transcript of sentencing proceedings, T1-28 ll 41-43.

1. The second letter which is dated on 30 June 2009 was signed by Mr Mercer as Corporate Projects Officer of PoolWerx.  It referred to PoolWerx having received $42,437.48 from the appellant, which represented repayment in full of all monies that were owed by him to the company, plus interest and auditing costs.  The letter concluded:

“The company acknowledges that as a consequence of the payment it has no further claim upon [the appellant] and regards the matter as finalised.”

1. It was suggested that the complainant had been happy for the appellant to remain at bay while he continued to make the repayments.[75]

   [75]Transcript of sentencing proceedings, T1-10 ll 24-30.

1. The appellant voluntarily surrendered himself to Queensland police after receiving this acknowledgment on behalf of PoolWerx.

1. In support of the submission about the appellant’s ongoing assistance to Victoria Police, reference was made to correspondence from a Victorian police officer.[76]  The two identical items of correspondence are dated 21 January 2008 and 8 September 2009.  They are on the letterhead of the Victoria Police Ethical Standards Department and are addressed to the presiding magistrate.  They state that on 17 November 2007 the appellant volunteered information to the Department in relation to serious drug offences involving a police officer into whose activities an extensive investigation was being conducted.  On 22 November 2007 the appellant provided a full and voluntary statement in relation to drug trafficking and possession of a drug of dependence involving that officer.  As at 21 January 2008, the officer had been charged with numerous offences.  The appellant’s information was described as significant evidence supporting the drug charges, which included trafficking ecstasy.  As at 8 September 2009, it was anticipated that he may need to be called as a witness at a trial in February 2010.  It was stated that he had given assurance that he would make himself available to do so.  His ongoing assistance was said to be appreciated.

   [76]This correspondence was also handed to the magistrate during the sentencing proceedings and made part of the court file.

1. This co-operation with the authorities as an informant and the payment of full restitution were particularly relied upon in support of the submission that the sentence of imprisonment imposed, be wholly suspended.[77]

   [77]Transcript of sentencing proceedings, T1-10 ll 51-53.

1. The appellant’s counsel said that because of this co-operation the informant was communicating with the Victoria Police.[78]  He said the Victoria Police had known the appellant’s address for several years.  He suggested there was no great haste for the appellant to be returned to Queensland under the warrant, as everyone seemed happy for him to continue assisting the police and paying the money back.[79]

   [78]Ibid, ll 41-42; T1-28 ll 43-45.

   [79]Ibid, ll 45-53.

The Sentence

1. The magistrate was not persuaded that the appellant’s circumstances were so exceptional as to warrant him avoiding a sentence involving actual custody.[80]  He referred to the matters McMurdo P identified in Robinson as being relevant to sentencing for this type of offence.  In particular he said this was a significant breach of trust, which not only involved planning and repetition but also involved him choosing the manner of exit from his employer to avoid culpability.  The magistrate stressed he avoided answering the matter for two to three years before providing assistance to Victoria Police, and he chose the timing of re-entering the Queensland criminal justice system.[81]

   [80]Transcript of sentencing remarks, T 1-6 ll 15-20.

   [81]Ibid, T 1-6 ll 20-42.

1. His Honour said that on the basis of the authorities, he considered that a head sentence of three years imprisonment would be reflective of the criminality.  If not for the prosecutor’s concession that a term of two and a half years’ imprisonment was appropriate, he would perhaps have been inclined to have imposed a term of three years’ imprisonment.[82]  He appeared to justify the reduction of six months by reference to the guilty plea, by saying:[83]

“The basis that the circumstances decry the granting of a more usual discount for an early plea of guilty, six months to reflect a plea at all is more reflective of the overall circumstances in which the plea has been offered.”

I take this to be a reference to the circumstances referred to, where the appellant departed and returned to Queensland at a time of his own choosing, resulting in a delay of five years in resolving the matter.

[82]Ibid, T 1-7 ll 40-60.  The transcript reads, “I would have perhaps have been inclined to have voided that period of three years which I mentioned.”  However in context, “voided” can only be the result of a mishearing of what was said.  Therefore I have interpreted the meaning as set out in [66] of this judgment.

[83]Ibid, T 1-8 l 1-10.

1. His Honour also considered a sentence to serve 12 months actual custody would be consistent with authority, the appellant’s criminality and his prior relevant criminal history.[84]

   [84]Ibid, T 1-8 ll 10-16.

1. With reference to the appellant’s criminal history, the magistrate considered that he had attempted to gloss over the details of the prior Queensland convictions, in his instruction to his counsel and what he told Mr Cummins.[85]  His Honour considered that while the subsequent offences committed in Victoria were minor, they demonstrated a willingness to deceive.  He also observed that the appellant seemed to have been less forthcoming with his wife about his past endeavours.  He said this was part of the relevant circumstances against which counsel’s submissions ought to be considered.[86]

   [85]Ibid, T 1-3 ll 1-50.

   [86]Ibid, T 1-3 ll S1-4 l 11.

1. His Honour accepted that the appellant’s repayment of the complainant’s full loss was an unusual and highly relevant circumstance for which the appellant was entitled to recognition in the sentence imposed.  He was satisfied this was adequately reflected by a reduction by five months in the period of actual custody to be served.  In determining the appropriate reduction, his Honour said the appellant’s efforts had to be balanced against the principle of general deterrence.  He said that the requirement to serve actual custody would assist in dispelling any perception that repayment would be determinative in avoiding custody.[87]  In particular his Honour observed:[88]

“I have little doubt that the ordinary citizen would observe your avoidance of actual gaol, if that were to occur, and many would not avoid actual custody, to be little more than you had succeeded in buying your way out of gaol.”

[87]Ibid, T 1-7 ll 1-22; D 1-8 ll 20-42.

[88]Ibid, T 1-7 ll 27-35.

1. His Honour concluded by saying that while it should be plain from what he had said that he had considered the matters raised by counsel, for those matters to operate to wholly suspend a sentence of imprisonment would place undue weight on factors in mitigation, and would have offended principles of deterrence and community denunciation.[89]

   [89]Ibid, T 1-8 48 to T 1-9 l 3.  I note that the quote which his Honour relied on does not appear in Haughland.  His Honour must have had another decision in mind.

1. The matters raised by counsel which his Honour referred to in the course of the judgment and which I have not previously identified were the appellant’s prior affliction with ADHD, the likelihood he was suffering from an adjustment disorder, his assistance to Victoria Police, the dependence of his company on him, the dependence of his child on him, and the unlikelihood he would re-offend.[90]

   [90]Ibid, T 1-4 to D 1-5.

1. His Honour observed, correctly in my view, that there was no indication that the appellant was afflicted by ADHD at the time of the offending and there was no reliable evidence that he was currently afflicted by it.[91]  He also found Dr Cummins’ opinion on which the diagnosis of adjustment disorder was based, less than persuasive.  Having regard to the matters I have discussed at [35]-[36] of this judgment, the magistrate was entitled to form this conclusion.

   [91]Ibid, T 1-4 ll 21-32.

1. Despite some degree of disquiet, his Honour thought it was reasonable to conclude that the appellant was not likely to re-offend.  He recognised that this was relevant in determining the weight to be given to personal deterrence.[92]

   [92]Ibid, T 1-5 ll 19-30.

1. His Honour twice mentioned the appellant’s assistance to Victoria Police.  Referring to the matters raised by counsel, he said:[93]

   [93]Ibid, T 1-5 ll 1-11.

“And further, that whilst you’ve been staying out of the arms reach of Queensland Police, or you had a further [indistinct] I would note, although perhaps there’s some scope for thinking that might be on advice, you’ve been assisting Victorian police with evidence against your former drug supplier for drug offences and sexual assault.”

His Honour also referred to this in the context of the appellant choosing his time to re-enter the Queensland criminal justice system, by saying:[94]

[94]Ibid, T 1-6 ll 33-36.

“You avoided answering the matter for at least two years before providing assistance to the Victorian police, and perhaps up to three.”

However, unlike the plea of guilty and the payment of full restitution, there is no express reference to any reduction in sentence to reflect this.

The appeal

Legal approach to this appeal

1. This appeal is by way of rehearing on the evidence given in the proceeding before the magistrate.[95]  A characteristic of such an appeal is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes.[96]

   [95]Justices Act 1886 (Qld), s 223(1).

   [96]Teelow v Commissioner of Police [2004] QCA 84, per Muir JA (with whom Fraser JA and Mullins J agreed) at [3].

1. However, in this case the appellant sought leave under s 223(2) of the Justices Act 1886 (Qld) for fresh evidence to be adduced. As that section provides, the District Court may give leave to adduce fresh evidence if the court is satisfied there are special grounds for doing so.

1. Mr Cash, counsel on the respondent’s behalf, did not object to leave being given to adduce the fresh evidence.  He considered that it was relevant for consideration of the appeal.  He did not seek to cross-examine the persons who had provided the evidence.  I gave leave to adduce the evidence which is referred to in [80] to [84] of this judgment.

1. The appeal is brought on the ground the sentence is manifestly excessive.  Before an appellate court will interfere with the exercise of a sentencing discretion, the appellant must demonstrate that the judicial officer acted upon a wrong principle, allowed extraneous or irrelevant material to guide or affect him, mistook the facts, or did not take into account some material consideration.[97]  It is therefore relevant to consider whether the sentence appealed against was outside the sound exercise of the sentencing court’s discretion.[98]

   [97]House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504-505.

   [98]Parry v Mayfield Holdings (Qld) Pty Ltd [2006] QDC 250 per Dearden DCJ at [29].

1. As stated by Muir JA in Teelow v Commissioner of Police:[99]

“It is a normal attribute of an appeal by way of rehearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance”…”
(my emphasis)

[99][2009] QCA 84 at [4]. The footnote is to Allesch v Maunz (2000) 203 CLR 172 at 180-181.

Fresh evidence

1. The fresh evidence admitted was a letter dated 6 April 2010 from the appellant’s wife; a report from Dr Chit-Jellinek dated 1 April 2010; an affidavit sworn on 18 June 2010 from the Victorian police officer, exhibiting letters about the extent of the appellant’s co-operation with Victoria Police; and reports dated 6 April and 15 June 2010 from Dr Loyal.

1. The letter from the appellant’s wife, the report from Dr Chit-Jellinek and the affidavit simply update information which was placed before the magistrate.  As such, I was satisfied it could not have been obtained with reasonable diligence for use at the sentencing proceedings; if given it would probably have an important influence on the result of the case; and was apparently credible.[100]  In coming to this conclusion I was assisted by the position taken by Mr Cash.  I am similarly satisfied in relation to the evidence of the psychiatrist, Dr Loyal.  The appellant was not referred to him by his GP until after the sentencing proceedings.  It is only since 25 March 2010 that he has commenced to assess and manage the appellant.

   [100]Langdale v Danby [1982] 3 All ER 129 at 137-138; [1982] 1 WLR 1123 applied in Clarke v Japan

   Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408, and Warry v PB Pty Ltd [1999] QCA 154 at

   [18]; See also the similar considerations identified by the High Court to guide a court of criminal

   appeal in deciding whether a miscarriage of justice has occurred because of evidence now available

   which was not led at trial: Gallagher v R (1986) 160 CLR 392 per Gibbs CJ at 395-396.

1. The evidence of each of these persons, with the exception of the affidavit by the police officer has been referred to in my previous summary of the appellant’s circumstances.

1. The police officer deposes that the appellant’s assistance was “substantial in leading to the charges and subsequent guilty pleas of the former member of the Victoria Police Force” to trafficking and possessing a drug for which a prison sentence had been imposed.  A document under the hand of this police officer, exhibited to the affidavit, states that the appellant made himself available as a witness for the trial, prior to the guilty pleas being entered on 30 March 2010.  This document, dated on 31 March 2010 refers to the matters having a suppression order on them at that time.  It also states that on checking police records, as at 30 March 2010, no criminal convictions were recorded against the appellant’s name in Victoria.

1. The police officer also deposed to being aware of the existence of an arrest warrant in Queensland for the appellant, but not being required to take action to arrest him or seek his extradition back to Queensland during the time they were meeting.

Submissions on behalf of the appellant

1. Mr Hoare on behalf of the appellant takes no issue with the head sentence of two and a half years imprisonment.  He concedes this is appropriate for a fraud of this amount, committed by a young man.[101]  Mr Cash also did not argue that this should be revisited.[102]

   [101]Transcript of appeal proceedings, T 1-11, ll 53-54.

   [102]Ibid, T 1-12, ll 1-10.

1. However, Mr Hoare does not accept that an amelioration of the head sentence from three years to two and a half years imprisonment to reflect the plea of guilty was consistent with the authorities, which he suggested attract a range of between two and three years imprisonment.[103]

   [103]Ibid, T 1-13, ll 6-10.

1. The appeal is directed to whether the sentencing discretion miscarried in requiring that the appellant serve actual time in custody.[104]

   [104]Ibid, T 1-13, ll 22-23.

1. As I have indicated, Mr Hoare submits that the sentence of actual custody imposed failed to give due weight to the cumulative effect of the circumstances of mitigation.  These circumstances are said to be the payment of full restitution amounting to indemnification of the complainant for the entirety of its loss; the appellant’s co-operation with Victoria Police; the effect of a term of actual imprisonment on his family; the retrospective diagnosis of Dr Loyal of the appellant suffering from the psychiatric illness of depression surrounding the period of the offending; and the delay of five years between the commission of the offence and the sentence, during which time he substantially rehabilitated himself.  With reference to the effect of actual imprisonment on his family, reliance was placed on the illness of his young child and the fact he was the source of income for the family unit.  Reference was also made to his surrendering himself to the jurisdiction.[105]

   [105]Submissions on behalf of the appellant, filed 6 November 2009, paras 2-5.

1. It was submitted that the relatively minor criminal history cannot overwhelm these factors, and the cumulative effect of these matters demonstrates extraordinary features making it appropriate that the appellant not serve any time in actual custody.

1. It was submitted that the appellant’s co-operation with the law enforcement authorities as an informant is the overwhelming feature in this case; and indemnification of the complainant is the second significant feature.[106]  It is conceded that absent this co-operation it would have been within the magistrate’s sentencing discretion to impose some period of actual imprisonment.  However, it is contended that this co-operation is sufficiently substantial to necessitate the exercise of the discretion to impose a sentence involving no actual custody.  Although it is also argued that if some period of actual imprisonment was nonetheless within range, it was not a proper exercise of the sentencing discretion to require that this be for a period as long as seven months.[107]

   [106]Transcript of appeal proceedings, T 1-18, ll 15-19.

   [107]Ibid, 1-29, ll 14-35.

1. Further it is submitted that the failure by the magistrate to give proper allowance for the appellant’s co-operation was a material error of the type identified in House and Teelow.  It is said in support of this that the magistrate does not indicate anywhere in his sentencing remarks that the appellant was entitled to receive some substantial discount, depending on the facts of the case, in relation to it.[108]  It was contended that:[109]

“the way in which the Magistrate has couched his reference to it seemed to                 misunderstand the nature of that co-operation to the extent that it   diminishes the significance of the co-operation.”

[108]Ibid, 1-32, ll, 33-47.

[109]Ibid, 1-32, ll 49-52.

1. Mr Hoare also identified a factual error by the magistrate when referring to the appellant assisting the police “with evidence against your former drug supplier”, where there was no evidence to support that this was the relationship between the appellant and the former Victorian Police officer.[110]

   [110]Ibid, 1-32, ll 16-22.

Submissions on behalf of the respondent

1. Mr Cash’s submission is that the magistrate’s starting point of three years for fraud as an employee to the extent of approximately $45,000 over a six month period is unremarkable and is supported by authorities including La Rosa, R v Jeffree[111] and R v Sheehan.[112]  He submitted that ordinarily on a plea of guilty a sentence of three years imprisonment, with twelve months actual custody to be served, may be expected, although more generous sentences are often imposed.  In these circumstances he contended, even taking into account the unusual and significant factor of co-operation, a period of seven months incarceration could not be said to be manifestly excessive when measured against other decisions.[113]

   [111][2010] QCA 47.

   [112][2007] QCA 409.

   [113]Transcript of appeal proceedings, T 1-48, ll 10-30.

1. In making his submission he accepts that the appellant’s co-operation was the most significant of the various factors to be considered and should have attracted significant discount.[114]  He also accepts the magistrate did not make reference to the co-operation in sentencing as fully as he did to the aspect of compensation.[115]  However, he submits that both of these matters were taken into account.[116]  In particular, he submits it has not been demonstrated that the appellant’s co-operation had been given insufficient weight.[117]

   [114]Ibid, T 1-40, ll 42-50.

   [115]Ibid, T 1-40, ll51-53.

   [116]Ibid, T 1-38, ll 7-37.

   [117]Ibid, T 1-39, ll 10-13.

1. Mr Cash identifies references to the appellant’s co-operation that appear in the magistrate’s sentencing remarks.  He refers to the magistrate’s statement that:[118]

“You’ve been assisting Victorian Police with evidence against your former drug supplier for drug offences and sexual assault.”

He makes the point that as this is immediately followed by an express statement to “further relevant matters” this clearly indicates that the magistrate considered co-operation to be relevant.  He also submits that if there is a factual error in that statement, as relied on by Mr Hoare, it is of no real consequence.[119]

[118]Ibid, T1-40, ll 54-55.

[119]Ibid, T 1-41, ll 1-10.

1. He also refers to the other mention made by his Honour to “providing assistance to the Victorian Police” which is set out at [74] of this judgment, and submits co-operation is not a matter which has been forgotten.[120]

   [120]Ibid, T 1-42, ll 1-5.

1. Further, he relies on the statement by the magistrate that, “It should be plain from what I’ve said that I’ve considered the matter raised by counsel” as an indication his Honour had regard to all of the facts including co-operation.[121]

   [121]Ibid, T 1-42, ll 7-15.

1. Reference was also made to his Honour’s remarks that:

“The complainant has of course had the benefit of that full restitution of compensation, and you are entitled to have that recognised in the sentence which is imposed today.

I’m satisfied that a reduction in the time to serve of five months adequately reflects your efforts when balanced against the need to discourage other would be offenders from taking from others and it would also assist in further dispelling any perception that might follow that repayment would be determinative in any way of avoiding custody.”  (my emphasis.)

It was submitted that the reference to “your efforts” can be interpreted as an indication by his Honour that having allowed a reduction of the fraud sentence by six months to reflect the plea of guilty, he further reduced the bottom of the sentence by five months to reflect all other matters.[122]  However, Mr Cash recognises that this comes immediately after a discussion of the payment of compensation.[123]  It also appears immediately before another reference to the repayment.  In context I interpret the reference to “your efforts” to be limited to this circumstance of mitigation.

[122]Transcript of appeal proceedings, T 1-43, ll 40-45.

[123]Ibid, T 1-43, ll 28-30.

1. Mr Cash also submitted it is important to assess the nature of the co-operation and the potential consequences for the appellant.[124]  In relation to this he referred to R v Gladowski where the Court of Appeal (Pincus and Thomas JJA and Atkinson J) said:[125]

“In these circumstances the applicant is entitled to a substantial informer’s discount for his extensive co-operation, which should take into account the risk of incidental retributive violence against him whilst incarcerated.  The major point on this application is the extent to which effect should be given to this important factor.  It is well recognised that co-operation of this kind, particularly where society benefits from it and it places the informer in a position of danger, calls for “very substantial discount” (McGookin (1986) 20 A Crim R 438 at 449). The necessity of encouraging persons to inform so that offenders may be convicted is regarded as a matter of “high public policy”. The benefits of such a policy are not likely to ensue without substantial inducement (compare Golding (1980) 24 SASR 161; 3 A Crim R 26; Pang (1999) 106 A Crim R 474 at 477). Discounts of one-third or even one-half of the sentence that would otherwise be appropriate are not uncommon, according to the value and risk of the assistance rendered (Golding; Thompson (1994) 76 A Crim R 75; Demir (unreported, Court of Appeal, Qld, No 13 of 1995, 4 August 1995)).  In Pang, Wood CJ at CL, without purporting to cover the field, described the discount “customarily given” in New South Wales as ranging between 20 and 50 per cent.  Other decisions including Thompson recognise the possibility of the discount exceeding 50 per cent, but at the same time the court must ensure that the reduction does not result in a sentence that is an affront to community standards.”  (My emphasis.)

Mr Cash placed emphasis on the need to take into account the risk of the assistance rendered and to ensure the reduction does not result in a sentence that is an affront to community standards.  While he conceded that those who inform against corrupt police officers are at risk there was no material placed before the magistrate that the risk faced by the appellant was greater than for a person who informs against other criminals, particularly where the sentence would be served in Queensland rather than Victoria.  He distinguished York v R[126] where the High Court upheld an appeal from the Queensland Court of Appeal against its decision to allow an appeal from the decision of Atkinson J to sentence Ms York to a wholly suspended sentence of five years’ imprisonment for serious drug offences in circumstances where on the evidence her Honour formed the belief that she faced a very real danger of being killed if imprisoned.  He submitted there was no such evidence in this case.  As stated by Callinan and Heydon JJ the “unusually strong and uncontradicted evidence in this case made it a special one.”[127]

[124]Ibid, T 1-43, ll 56-58.

[125](2000) 115 A Crim R 446 at 447 [7].

[126][2005] HCA 60.

[127]Ibid at [68].

1. While Mr Cash accepted that the effect of an actual term of imprisonment on the appellant’s family and the fact the appellant was suffering from a psychiatric illness surrounding the period of offending were relevant factors, he submitted that neither alone or in combination warranted a conclusion that the sentencing discretion had miscarried.[128]  Although the evidence was less than clear as to whether the appellant was in fact suffering from depression at the time of the offences, he was prepared to assume this.  However, he submitted there was no properly established link between this and his ability to control himself or know what he was doing was wrong in relation to committing the offences.  He contended that the psychiatrist seems to describe the appellant’s dysfunctional relationship at the time as being a more important factor in their commission.  He submitted depression was not an apt explanation for the appellant’s calculated and persistent dishonesty, such as to operate to reduce his moral culpability for the commission of the offences.

   [128]See discussion at transcript of sentencing proceedings, T 1-45, l 80 to T 1-48, l 10.

1. He also submitted that the relevance of the delay enabling the appellant to substantially rehabilitate himself is called into question by the dishonesty involved in the appellant’s 2007 offences.[129]

   [129]Transcript of sentencing proceedings T 1-39, l 30 to T 1-40, l 42.

Discussion

1. I first address Mr Hoare’s submission that the magistrate failed to give proper allowance for the appellant’s co-operation with Victorian Police, and this failure was a material error of the type identified in House and Teelow.

1. As McMurdo P said in R v SBI[130] the Court of Appeal has long recognised:

“… that the effective operation of the criminal justice system requires sentencing courts to give substantial discounts to offenders who have pleaded guilty and assisted with the administration of justice.  This is particularly so where they have implicated others and put themselves at risk of violent retribution whilst incarcerated:  R v Thompson, ([1994] QCA 393) R v D & Attorney-General of Queensland, ([1995] QCA 332) R v Gladkowsi((2000) 115 A Crim R 446; [2000] QCA 352) and R v PX ([2005] QCA 246 at [5]-[6]).  It is in the interests of the administration of the criminal justice system to encourage offenders like the applicant to cooperate in this way by sentencing them much more leniently than otherwise.  The sentence imposed which includes the parole eligibility date, must, however, adequately reflect the gravity of the offence:  R v Webber ((2000) QCA 316 at [4] and [5]).”

[130][2009] QCA 73 at [6] and [8].

1. In R v Webber[131] the President and Chesterman J (as he then was) said in a joint judgment:

   [131]Ibid.

“We agree with Pincus JA that a prisoner who provides tangible co-operation in the prosecution of others implicated in a prisoner’s or some other criminal offence should receive a significant reduction in sentence sufficient to afford an inducement to others to provide such co-operation.

Although the discount for co-operation must be discernable, and worthwhile, the adjusted sentence must nevertheless reflect the seriousness of the offence which is being punished.  The balance between these competing demands will not always be easy to strike”.  (my emphasis.)

In that case Pincus JA while dissenting as to the extent of the reduction of the sentence said:

“Yet it is positively necessary to make it clear that co-operation, in the sense of incriminating other persons, will be likely to produce a significant discount in sentencing, quite apart from the discount obtained by persons who plead guilty.”  (My emphasis.)

1. As indicated in R v Gladowski[132] this principle was expressed in terms of a “very substantial discount”.  In R v D & Attorney-General of Queensland[133] the court recognised that “substantial discounts” from the sentence which would otherwise not be appropriate may be justified where an offender implicates others, but it ought not be so great as to over-reach the need for sufficient punishment or to encourage false allegations.

   [132](2000) 115 A Crim R 446.

   [133][1995] QCA 332 at pp. 3-5.

1. In York v R[134] Gleeson CJ referred to the common sentencing practice of extending sometimes very substantial leniency, to an offender who has assisted the authorities, and, in doing, to take account of any threat to the offender’s safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released. 

   [134][2005] HCA 60 at [3].

1. In R v SBI[135] Chesterman J (with whom Daubney J agreed) referred with approval to the statements of McMurdo P and McPherson JA in R v X[136] and Kirby P in Salameh v R.[137]

   [135][2009] QCA 73 at [34] and [35].

   [136][2001] QCA 498.

   [137](1991) 55 A Crim R 384 at 388.

1. In R v X McMurdo P said:

“The appropriate discount for co-operation in any case will always vary according to the circumstances.  Thompson is not authority for any rigid formula that must be applied.”

McPherson JA agreed:

“… that there is no fixed formula or method for calculating a percentage or other rate on account of either a plea of guilty or co-operation with the police.”

In Salameh v R, Kirby P said:

“The amount of the discount is in the discretion of the trial judge.  There is no fixed discount …  .  In my view, it would be highly undesirable to harness the discount by reference to fixed formulae.  The circumstances of each case are sufficiently special to warrant a high degree of flexibility in the discount provided for co-operation.”

1. In the present case the sentencing magistrate while mentioning the appellant’s assistance to the Victorian police in the manner I have identified in [74] of this judgment made no express reference to any reduction in sentence to reflect this.  He mentioned it in passing in contrast to his express reference to the reduction in sentence to reflect the appellant’s plea of guilty and payment of restitution.

1. Given the recognition by the Court of Appeal of the need for sentencing courts to give substantial discounts to offenders who plead guilty and assist in the administration of justice, subject to ensuring the sentence imposed adequately reflects the gravity of the offence, I conclude that his Honour’s failure to expressly refer to this principle demonstrates a failure to take it into account in exercising his sentencing discretion.

1. His Honour’s two references to the appellant’s assistance to Victoria Police were in the context of his staying out of the reach of the Queensland police so as to avoid culpability for his offending.  In these circumstances, the statement by his Honour that, “It should be plain from what I’ve said that I’ve considered the matters raised by counsel” is not sufficient to satisfy me that he did so in relation to the appellant’s assistance.  With respect, I consider this is anything but plain in relation to this issue.  And for the reasons I have given in summarising the submissions on the respondent’s behalf I do not consider the magistrate’s reduction of the sentence to reflect “your efforts” is directed to taking this assistance into account.

1. Not only did the magistrate not refer to the need for the sentence to be adjusted to give a discernible and worthwhile reduction for the co-operation, but he also made no mention of the need to strike a balance with the need to reflect the seriousness of the offences being punished.  Nor did his Honour make reference to the evidence from the Victorian police officer that the nature and extent of this co-operation was to give significant evidence about serious drug charges against a corrupt member of Victoria Police.  There was also no discussion of the extent, if any, the appellant had put himself at risk of violent retribution whilst incarcerated as a consequence.

1. Accordingly as required by House the appellant has demonstrated that the magistrate failed to take into account a material consideration in exercising his sentencing discretion such as to allow an appellate court to interfere with the exercise of the sentencing discretion.[138] In these circumstances I am now exercising my own discretion in re-sentencing the appellant. Under s 225(1) of the Justices Act 1886 (Qld) I may set aside or vary the appealed order, and under s 225(3) I may exercise any power that could have been exercised by the magistrate.

   [138]Also as expressed in Teelow the appellant has demonstrated that the order the subject of the appeal is the result of a discretionary error.

1. In R v Robinson; ex parte A-G (Qld)[139] McMurdo P, after reviewing a number of recent decisions of the Court of Appeal concluded:

“The concerning aspect of offences of this kind is the breach of trust.  These offences involved a considerable sum of money obtained over a 14 month period.  The offending was planned and systemic.  Compensation has not been made.  Generally in these circumstances an offender will be required to serve a period of actual detention.”

In that case, an offender who suffered from a gambling addiction and had stolen $33,239 from his employer over a 14 month period was sentenced to six months imprisonment wholly suspended with an order for restitution.  On appeal, that sentence was increased to a sentence of two and a half years imprisonment suspended after six months.

[139][2004] QCA 169 at 11.

1. While agreeing that these words were apposite to the circumstances in R v La Rosa; ex parte A-G (Qld) Keane JA said:[140]

“It is clear that where an offender has abused a position of trust in order to steal a substantial amount of money over a lengthy period of time, a non-custodial sentence can only be justified in the most exceptional circumstances.”

[140][2006] QCA 19 at [24] with reference to R v Mara; ex parte A-G (Qld) [1999] QCA 308 at [20]; de Jersey CJ and Williams JA agreed with these reasons.

1. R v Bell[141] is an example of a departure from this near-universal tariff in an exceptional case.  As Dunn J (with whom Wanstall CJ agreed) said:[142]

“It is perfectly true that a lengthy sentence will often be appropriate, because of the necessity to impose a punishment which will act as a strong deterrent against similar conduct on the part of others.  But it is, I think, essential that courts remain aware that there may be a departure from a near-universal “tariff” in an exceptional case.  I regard this as an altogether exceptional case.”

[141][1982] Qd R 216.

[142]Ibid at 220.

1. In R v Mara; ex parte A-G (Qld) the court concluded there were special circumstances which justified the full suspension of the sentence which was imposed, while recognising that “cases where actual gaol time is not required to be served will be an exception.”[143]

   [143][1999] QCA 308 per McMurdo P and Thomas JA at 9. McPherson JA concurred in a separate judgment. R v Blackhall-Cain; ex parte A-G (Qld); and R v Riesenwebber; ex parte Attorney-General [1996] QCA 504 are other examples of cases in which the imposition of non-custodial sentences were not interfered with.

[175](1988) 37 A Crim R 97 at 100.

1. The relevance of Bell[176] to this issue is well summarised in the head note as follows:

“(2) Where, prior to sentence, there has been a lengthy process of rehabilitation   and the evidence does not indicate a need to protect society   from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.In the exceptional circumstances of the case, a non-custodial sentence should be substituted.”      (my emphasis)

However, in that case the long delay between the discovery of the deficiencies in     late 1977, and the four charges of fraudulent disposal of trust property being dealt with in April 1981, occurred in circumstances outside the appellant’s control.      Although he had gone to Western Australia, when he became aware of police     investigations he resigned his post in that state and returned to Queensland where he    found employment, which he maintained until he was sentenced.  He was entirely            co-operative with the police during their investigations.

[176][1982] Qd R 216; (1981) A Crim R 347 at 351.

1. It cannot be said, at least until 2007, that the appellant was co-operative with the police during their investigations.  Although it is to his credit that he voluntarily desisted from further transfer of company funds into his girlfriend’s account, he left Queensland, and despite assurances to the Queensland police during 2006 that he would return to deal with the matter, he did not do so.  As a result an arrest warrant was issued for the purpose of extradition if located interstate.  This is notwithstanding a reference in Mr Cummins’ report of 7 September 2009 that at one time before he established his own business in Melbourne he returned to Brisbane where he worked for 8 months before returning to Melbourne.[177]

   [177]Report of Mr Cummins, 7 September 2009, p 3.

1. Therefore, this was not a case where the delay occurred because of circumstances entirely outside the appellant’s control, as opposed to fleeing the jurisdiction.  Accordingly, while his rehabilitation must be taken into account, it is of less significance than if it had simply taken place in the ordinary passage of time.

1. In addition, the significance of the rehabilitation is diminished to the extent of his conviction in Melbourne on 24 July 2007 for recklessly dealing with the proceeds of crime.  The nature of the offending, although not particularly serious, as the magistrate observed, demonstrated a willingness to deceive.  The item in question was a registration plate which he attached to his vehicle to give the false impression it was registered in Victoria.

1. This must be balanced against the fact that the offence was not regarded as sufficiently serious to warrant recording a conviction, and he subsequently established a successful business.  The testimonials provided on his behalf from those who dealt with him through the business speak of his trustworthiness and integrity.  It is also since that offending that he provided substantial assistance to the Victoria Police.  It is also relevant that from that point of time, the appellant’s flight from the jurisdiction was not the only cause of the delay.   The evidence from the Victorian police officer is that he was not required to arrest the appellant or seek his extradition back to Queensland during the time they were meeting.  Further, he appears to have received legal advice to pay off as much money as he could before he was dealt with.  According to his counsel at the sentence, the informant was not pushing the matter and the complainant appeared to be happy for the appellant to remain at liberty while he continued to make repayments.

1. I also proceed on the basis that in these circumstances, as the magistrate found, it is unlikely that the appellant will re-offend.[178]  Therefore, personal deterrence is not a significant factor in this case.

   [178]This is also consistent with Dr Loyal’s opinion that there are good prognostic indicators in terms of his overall outcome. See [41] of this judgment.

1. Therefore, while I have taken the appellant’s rehabilitation into account, as I have observed, it is of less significance than if it had taken place in the ordinary passage of time.

1. With reference to Dr Loyal’s retrospective diagnosis of an illness of depression surrounding the period of offending, as stated by Chesterman JA (with whom Holmes JA and Ann Lyons J agreed) in R v Hayes:[179]  

“A prisoner’s mental illness which reduces her capacity for judgment or   understanding, or ability to control behaviour, and therefore reduces her   moral blame worthiness in the offending is rightly regarded as an important              mitigating factor in the sentencing process.”

This also tends to lessen the claims for deterrence and denunciation as       considerations bearing on the imposition of a proper sentence.[180]

[179][2010] QCA 96 at [28].

[180]R v Clarke [2009] QCA 361 per Keane JA (with whom Holmes JA and Atkinson J agreed) at [23] with reference to R v Tsiaras [1996] 1 VR 398 and R v Verdins (2007) 16 VR 269.

1. In R v Grehan the Court of Appeal applied the proposition expressed by Fryberg J (with whom McPherson JA agreed) in R v Neumann; ex parte A-G (Qld) as follows:[181]

   [181][2010] QCA 42 at [24]. The reference to R v Elliott is to [2000] QCA 276.

“Further, as was observed in R v Elliott by Davies and Thomas JJA   (McPherson JA concurring), ‘Mental abnormality falling short of insanity   may be a significant mitigating factor. Apart from the question of   culpability, it makes it difficult for the court to apply a factor such as   general deterrence.’  That reflected (albeit without direct reference) what   was written by Gleeson CJ in R v Engbert:

“The circumstance that an offender suffers from a mental disorder may   well be of considerable significance in a number of respects to the   sentencing task. One of those respects depending upon the facts and   circumstances of the individual case may relate to the matter referred to by             this Court in the case of R v Scognamiglio(1991) 56 A Crim R 81. At 86 the passage in a judgment of the then Chief Justice of Victoria was cited with approval. That passage was in the following terms:

‘In sentencing generally, it is necessary to balance personal and   general deterrence on the one hand with rehabilitation on the other,   but in the case of an offender suffering from a mental disorder or   abnormality, general deterrence is a factor which should often be   given little weight

….

General deterrence should often be given very little weight in the   case of an offender suffering from a mental disorder or abnormality   because such an offender is not an appropriate medium for making   an example to others.’” 

That decision also demonstrates that it is not essential that there be a causal                relationship between the abnormality and the commission of the offence;   although causation must be taken into account in assessing the   circumstances of the case. (footnotes omitted).”

1. However, with reference to the issue of the need for there to be a causal connection between the psychiatric illness and the offence or offences, in R v Thompson which was relied upon by Mr Hoare, the Western Australian Court of Appeal said:[182]

“Of course, moral culpability would only be lessened where there is a   causal connection between the psychiatric illness and the commission of   the offence or offences, in the sense that the psychiatric condition must   have contributed to the commission of the offence…It must necessarily be   the case that, the greater the contribution of the psychiatric illness, the more                the moral culpability will be lessened.  To the extent that there is a moral   lessening of culpability, that should be reflected in the penalty imposed, as               it often has been.” (footnotes omitted).

[182](2006) 157 A Crim R 385 per Steytler P (with whom McLure JA agreed) at 396.

1. In Blackhall-Cain[183] it was held that a non-custodial sentence was one which was within the range of a proper exercise of the sentencing discretion in the case of an offender who, it was accepted, had always intended to refund the stolen moneys and who adduced evidence that there was a real link between a psychiatric condition from which he suffered and the offences that had been committed.

   [183][2000] QCA 380.

1. On the other hand in La Rosa,[184] while it was accepted that the respondent’s bulimia should properly be taken into account as a mitigating factor, it should not have been taken by the sentencing judge as serving to preclude the imposition of a custodial sentence.  As stated by Keane JA (as he then was):[185]

“It cannot be said, however, that the respondent’s offending was driven   only by the hunger which was an aspect of her bulimic condition…   Importantly, while it may be accepted that the strains of a condition such as                bulimia could properly be seen as placing the respondent’s offending in a   less serious category than that of an offender who steals solely out of greed,   it is not as though a compulsion to steal was a symptom of the   respondent’s condition, or as though her offending was due to a condition                   such as depression which adversely affected her ability to judge between   right and wrong, or as though the stealing which did occur was altruistic in   the sense that it was done for the benefit of persons other than the   respondent.” (footnotes omitted).

[184][2006] QCA 19 at [28].

[185]Ibid at [27].

1. In Thompson the appellant suffered from maladaptive coping strategies, feelings of powerlessness and impotence, excessive pre-occupation with the security needs of his family and financial and other stresses which affected him, and which it was accepted all played a part in the commencement and continuation of his offending behaviours, which involved a $3 million tax fraud.  In relation to these factors Steytler P said:[186]

“the sad truth is that problems of this kind, and even depression, are shared   by many others who commit criminal offences.  Consequently, while some   allowance should be made for those factors, they are on their own, capable                of providing only a relatively moderate reduction in the sentence which   would otherwise be imposed.”

[186](2006) 157 A Crim R 385 at [73].

1. Accepting, on the basis of Dr Loyal’s retrospective opinion, that the appellant was suffering from depression at the time of his offending and this can properly be taken into account as a mitigating factor because it lessens his moral culpability, there was no evidence it adversely affected his ability to control his actions, or to judge between right and wrong.  Although the factors identified by Dr Loyal as causing his depression included the pressure of feeling his girlfriend would leave him unless he could be financially more secure, the fact is that the offending was committed systematically over a 6 month period, with steps taken to falsify records in order to avoid detection.  Further, the offending was not altruistic because although it was intended to benefit his girlfriend, it was also intended to benefit him by maintaining their relationship.  Although as recognised in Neumann it is not essential there be a causal link between his depression and the commission of the offences, it is still necessary to take causation into account in assessing the circumstances of the case.

1. The result is that while some allowance must be made for the appellant’s depression at the time of his offending, the extent of this must be relatively moderate in the present case.

1. This analysis supports my earlier conclusion that this combination of mitigating circumstances together with the appellant’s full indemnification of the complainant’s loss, would require him to serve no more than 6 months actual custody.  However, absent his co-operation with the Victoria Police, I consider that some period of custody would have to be served.  In coming to this conclusion, I have also had regard to the appellant’s relative youth at the time of committing the offences, his apology made through his counsel at sentence, his co-operation with the administration of justice through his admissions in the police interview, his remorse, his lost benefit of the successful business he established (including his reduced income), the effect of recording a conviction on his professional life (including that it will disqualify him from being a company director for at least five years) and his giving back to the community through charitable donations.

1. In determining whether the addition of his co-operation as an informant to this aggregation of circumstances makes this such an exceptional or special case, that it is appropriate for me to exercise the sentencing discretion so as not to require the appellant to serve any time in actual custody, it is also necessary to have regard to the authorities relied on by Mr Cash to support the proposition that a sentence requiring some actual period of incarceration is unremarkable.  I have already referred to and distinguished La Rosa.  The other cases he specifically referred to were Sheehan and Jeffree.

1. In Sheehan the applicant for leave to appeal had been sentenced to two and a half years imprisonment, suspended after four months, for having misappropriated some $25,000 from his employer over a four week period.  He was a branch manager of FAI insurance.  As Holmes JA, with whom Williams JA and McMurdo J agreed, said, the stealing “occurred in the turmoil surrounding the collapse of FAI’s parent company and another insurer’s taking over of FAI’s business at the beginning of 2001.”  Apart from the misappropriation, the applicant had also pleaded guilty to four counts of fraud (two with circumstances of aggravation) and one count of stealing simpliciter.  The total amount misappropriated amounted to some $41,317.  By the time of sentence restitution had been made of all misappropriated funds, except for an amount owed to a bank, and that was held in trust ready for payment.  The applicant had no prior criminal history, he had pleaded guilty and there was a very substantial delay of between four and five years, not of his making, between the offences coming to light and being dealt with.  There was no complaint about the head sentence which Holmes JA regarded as unremarkable.  However, it was argued the sentencing judge had failed to give sufficient weight to the delay in the proceedings, the making of restitution, and that deterrence did not require any actual period in custody; nor did community expectations.  The applicant having now spent some two months in custody, his counsel contended for a sentence suspended forthwith.  Reference was made to Law and Bell in support of this argument.  However, her Honour said that unlike Bell no specific error in the exercise of the sentencing discretion was demonstrated.  She also said that restitution and rehabilitation were important mitigating factors, but not such as to mandate a non-custodial sentence.  Although, her Honour recognised that the sentencing judge might have taken a different course, she did not think that the requirement in that case for the applicant to serve four months actual custody was “outside a proper exercise of sentencing discretion”.[187]

   [187][2007] QCA 409 at [6].

1. In Jeffree over a period of six months, the applicant, systematically and deliberately defrauded his employer of some $43,500 by taking advantage of the position of trust he enjoyed in his management position.  He pleaded guilty to one count of committing fraud as an employee to the value of $5,000 or more.  He was sentenced to a term of three years imprisonment, suspended after nine months for an operational period of three years.  The fraud involved providing the complainant’s financial controller with a handwritten document purporting to be the supplier’s invoice of an amount in excess of the real invoice and, after paying the supplier, the applicant would retain the difference.  He suffered from a gambling habit which consumed his wages, and he took the money in order to maintain his family.  Shortly before the fraud was uncovered, he voluntarily desisted from further perpetuating it.  He was a mature man, 45 years old at the time of the offences and 46 when sentenced.  He had no prior criminal history.  Daubney J (with whom Fraser JA and P Lyons J agreed) said:[188]

“It is also notable … that not only has there been no restitution, there is no                  realistic prospect of restitution.”

Having regard to the reaffirmed statements in the reviewed authorities, of the          necessity that sentences for offences of this nature be an appropriate     deterrent, his   Honour held that the sentencing discretion had not miscarried, and the      sentence was not manifestly excessive.

[188][2010] QCA 47 at [20].

1. I have previously referred to Robinson.[189]  In that case the respondent, who was employed as an insurance consultant with the Queensland Police Union, used his position to fraudulently transfer a total of $33,239 of members’ funds into his own bank account.  After pleading guilty he was sentenced to six months imprisonment suspended immediately with an operational period of two years, and ordered to pay compensation of $28,928.74 within three months, in default imprisonment for six months.  The Attorney-General appealed, contending that the sentence was manifestly inadequate.

   [189][2004] QCA 169.

1. The fraud involved 101 transactions over a 14 month period, and was detected during an external audit.  The respondent admitted he had used the money for his gambling habit on poker machines and to buy personal everyday items.  He was 49 years old at the time of sentence and 47 and 48 at the time of offending.  He had no criminal history.  A psychologist’s report recorded that he had been in a physically and emotionally abusive seven year relationship which led him to attempt suicide.  He was then placed on anti-depressants and began to gamble on poker machines.  He descended into financial difficulty.  At the time of sentence Robinson had not made restitution, but his counsel intimated a possibility of him being able to raise funds through his superannuation and by arranging for a personal loan with his mother as guarantor.  McMurdo P observed that the learned sentencing judge seemed to have placed an “unusual and undesirable emphasis on this fact in framing the sentence, which encouraged the making of the restitution by sending him to gaol for six months if he defaulted.”  After reviewing the authorities her Honour said that, even taking into account the principles applicable when considering an Attorney-General’s appeal, the sentence imposed on Robinson was plainly manifestly inadequate.  A term of two and a half years imprisonment suspended after six months with an operational period of three years was substituted for the sentence imposed.  Chesterman J agreed and added that:

“there is much force in the submissions … that in cases of this kind if   compensation or restitution is to be taken into account as a significant   factor in mitigation the restitution should be paid or made before the   sentencing process is carried out.”

Atkinson J agreed with the President and Chesterman J.

1. In R v Lawrie[190]  the applicant had pleaded guilty to three counts of fraud as an employee with a circumstance of aggravation, for which she was sentenced to three and a half years imprisonment, suspended after 12 months.  The amount involved in the frauds was some $51,000, which was misappropriated over a 20 month period.  The applicant was employed in an administrative position and had several modes of misappropriating money from her employer.  She was a 41 year old mother of two children with no previous convictions.  She abused both the employment relationship and her friendship with the employer.  The money was taken to establish her own business. The offending only ceased after a complaint by a customer triggered a full audit which disclosed the extent of the loss.  At the time of sentencing she had made payment to the employer’s bank of $10,000 as restitution for misdirecting payment’s made by the employer’s customers.  The employer had only been compensated to the extent of $100.  Restitution orders were made by the sentencing judge.  A Lyons J (with whom Muir JA and White J agreed), concluded after a review of the authorities that the head sentence was not manifestly excessive, and that the suspension after 12 months was “certainly within range”.  Her Honour concluded:[191] 

“Given the significant breach of trust involved, the devastating impact on   the complainant employer including the ongoing financial consequences,   the length of the offending, and the sophisticated nature of the offending I   do not consider that the sentence imposed in the circumstances was   manifestly excessive.  A particular factor was that a significant sum of   money was expended to establish the applicant’s own business.”

[190][2008] QCA 97.

[191]Ibid at [28].

1. In R v Haughland[192]  the 21 year old applicant, who was employed as an assistant manager in a mobile phone store, stole 14 phones and falsified six mobile phone contracts over a two month period.  For the stealing offence she was sentenced to four months imprisonment and two years probation.  On a fraud charge, she was sentenced to two years imprisonment, suspended after four months.  The phones were used to make telephone calls and send SMS text messages, which as previously mentioned, resulted in total charges of $13,404.25.  The total value of the phones was $12,707.

   [192][2009] QCA 46.

1. The applicant declined to participate in an interview with police officers. None of the phones were recovered and no payments were ever made on the contracts. There is no evidence that the applicant obtained any personal benefit from the distribution or use of the phones, apart from the evidence that the applicant had used one of the stolen phones to telephone other employees. She had no prior criminal history and entered early pleas of guilty. She had two operations for ovarian cancer and was in need of further surgery. She was the sole supporter for a three year old child. She had a good work history and had commenced tertiary studies. While her offending conduct appeared quite aberrant in nature, was not shown to be engaged in for the purposes of personal gain,[193] and the court[194] accepted that it was open to the sentencing judge in the proper exercise of his discretion to impose a wholly suspended sentence,[195] it could not conclude that the exercise of this discretion had miscarried.  Reference was made to the abuse of her position of trust and that while her offending conduct was perpetrated over a short period, it was made more culpable by her production of bogus contracts with a view to cloaking her thefts and facilitating the wrongful use of mobile phones.

   [193]Ibid at [14].

   [194]Muir JA (with whom Keane JA and Daubney J agreed) at [14]-[16].

   [195]See also [55] of this judgment.

1. The review of these authorities, and others to which they refer, confirms that as indicated by Williams J in Alexander, each case has to be considered in light of its own particular facts.  While Robinson and Haughland involve a smaller monetary value, the element of full restitution was absent, as was significant co-operation as an informant with law enforcement authorities.  Of the other cases involving a similar monetary value, only in Lawrie was full restitution made, and in no case had the offender co-operated at this level with law enforcement authorities.

1. I have found in the present case that a specific error in his Honour’s sentencing discretion has been demonstrated, with the result that it falls to me to exercise my discretion to re-sentence the appellant.

1. In doing so I recognise the need to strike the balance between a sentence reflecting the gravity of the appellant’s offending conduct, and the principles of general deterrence and community denunciation on the one hand, with the need to give a discernable and worthwhile reduction in his sentence to afford an inducement to others to provide such co-operation, while being careful not to overreach the need for sufficient punishment or to encourage false allegations.

1. In this case there is undisputed evidence that the appellant’s information, given as a volunteer to the Victoria Police, was significant evidence, and his assistance was described as substantial in leading to serious drug charges against a corrupt former member of the police force, who subsequently pleaded guilty.  This is not a case in which the appellant had informed about illegal conduct in which he was also involved and/or had been charged with.  Not only did he provide information, but he was prepared to give evidence.  It is reasonable to conclude that this was a significant catalyst in the plea of guilty, with its important community benefit.  These benefits include not only the saving of time and public resources that would otherwise be expended through a trial, but also the benefit of identifying and bringing a corrupt law enforcement officer to justice.

1. Although there is no direct evidence of any threat to the appellant’s safety in the past or the future if he is incarcerated in a Queensland prison, it is relevant that as at 31 March 2010 the matters involving the corrupt former officer were subject to a suppression order.  As a matter of common sense a reasonable inference to be drawn was that this was at least in part recognition of the potential danger associated with the prosecution.  Further, as Mr Cash concedes, those who inform against corrupt police officers are at risk.  The way in which he expressed his submission was not that the appellant was at no risk as a result of his co-operation, but that there was no evidence the risk to him was greater than for other persons who inform against criminals.

1. In these circumstances, I conclude that when the significant and substantial nature of his co-operation is considered in combination with the other mitigating circumstances which have been referred to, in particular his making of restitution to the extent of fully indemnifying the complaint’s loss, these circumstances are so unique, and as such so exceptional, as to justify the appellant serve no actual time in custody for these offences.[196]  The sentence imposed was manifestly excessive to the extent it required him to do so.

   [196]I note that as stated at [2] of this judgment the appellant served imprisonment for this offence from the date of the magistrate’s sentence on 11 September 2009, until he was admitted to bail on 16 September 2009.

Conclusion

1. Accordingly, the appeal against sentence is allowed.  The orders are varied to the extent of imposing a sentence of two and a half years on each offence, imprisonment suspended forthwith with an operational period of 37 months.[197]  The sentences are to be served concurrently.

   [197]Justices Act 1886 (Qld), s 225(1) authorises the variation of the order.

Order

1. The order of the court is:

1.          Appeal allowed;

2.          The orders are varied to the extent of imposing a sentence on each offence of two and a half years imprisonment suspended forthwith with an operational period of 37 months, to be served concurrently.